[2024] KEHC 8826 (KLR)
The court found that both the trial and appellate courts failed to consider the period the applicant spent in remand custody when computing his sentence, as required by section 333(2) of the Criminal Procedure Code. The applicant was in remand for 1 year, 5 months, and 20 days prior to conviction, and this period...
Source-derived case information.
- Citation
- [2024] KEHC 8826 (KLR)
- Parties
- Applicant: Maxwell Osonyo Emuget; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 30 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sexual Offences, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxwell Osonyo Emuget
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial and appellate courts failed to consider the period the applicant spent in remand custody when computing sentence.
- 2 Whether the applicant is entitled to have his sentence revised to account for time spent in remand custody under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that both the trial and appellate courts failed to consider the period the applicant spent in remand custody when computing his sentence, as required by section 333(2) of the Criminal Procedure Code. The applicant was in remand for 1 year, 5 months, and 20 days prior to conviction, and this period was not deducted from the fifteen-year sentence imposed. The court held that the failure to account for this period was a violation of a mandatory legal requirement and would amount to denying the applicant a right conferred by law. Accordingly, the court allowed the application for revision and ordered that the sentence be reduced by the period spent in remand custody, with the...
Court Disposition
application allowed
Orders
- The sentence of fifteen (15) years imprisonment shall be computed less by one (1) year, five (5) months and twenty (20) days.
- The sentence shall run from the date of conviction.
Full Case Text
Judgment text and source record
22 paragraphs
Emuget v Republic (Criminal Revision 30 of 2024) [2024] KEHC 8826 (KLR) (22 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8826 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 30 of 2024
DR Kavedza, J
July 22, 2024
Between
Maxwell Osonyo Emuget
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of defilement contrary to section 8 (1) as read with section 8(4) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve thirty (30) years imprisonment. He filed an appeal challenging his conviction and sentence vide Milimani High Court Criminal Appeal No. 47 of 2019. The appeal failed on conviction but was successful on sentence. The High Court reduced his sentence to fifteen (15) years to run from the date of conviction.
2. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she spent in remand custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
3. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
4. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody during sentencing. The court has a duty to take into account the period an accused person had remained in custody during sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms. This was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR.
5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
6. From the record, the applicant was arrested on 17th June 2017. He was arraigned in court for take plea. He was granted a bond of Kshs. 500,000 with one surety of a similar amount. He however spent the entirety of his trial in remand custody until his conviction on 7th December 2018. He, therefore, spent 1 year 5 months and 20 days in remand custody. From the record, it is clear that the period was not factored in during his sentencing both by the trial and appellate court. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
7. I thus allow the application. In the premises, I make the following orders: the sentence of fifteen (15) years imprisonment shall be computed less by one (1) year, five (5) months and twenty (20) days and shall run from the date of conviction.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JULY 2024D. KAVEDZA............................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR